Sat 8 Jan 2011
Posted by Gregory Brown under Civil Litigation, Defamation & Free Speech, Irvine business lawyer, Orange County Business Lawyer, Orange County Personal Injury, orange county trial attorney, personal injury
Defamation in California
What is Defamation?
In California, a claim for defamation involves a false statement made by one person about another person, which causes harm to a person’s property, business, profession or occupation. Defamatory statements are typically made using two methods:
(1) Slander: Making defamatory statements by a transitory (non-fixed) representation, usually an oral representation; or (2) Libel: Making defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
In order to meet the elements for a defamation cause of action, a successful action must include:
1. A false and defamatory statement about another;
2. The unprivileged publication of the statement to a 3rd party (not including the person defamed by the statement);
3. Damage to the person defamed. Publication, in the context of defamation, does not mean it must be in print. Rather, it is considered published when it is made to a 3rd party.
Defamation Per Se
California also recognizes “defamation per se”, or defamation that is presumed to cause damages without the need for any proof by the defamed person. Defamation per se is typically asserted in instances where there are attacks on a person’s professional character, allegations that an unmarried person is unchaste, allegations that a person is infected with an STD, or allegations that the person has committed a crime of moral “turpitude”.
“Truth” and “Privilege” Defenses to Defamation Claims
There are several defenses to an action for defamation: 1. Truth. If the person who made the alleged defamatory statement was telling the truth, it is an absolute defense to an action for defamation. For example, if a rumor being spread around about a person is actually true, passing along this rumor is not defamation. 2. Privilege. Another defense to a defamation claim is allowed when statements are made in court, by legislators on the floor of the legislature, or by judges sitting on a trial, no matter how false or outrageous.
“Opinion”, “Fair Comment” and “Consent” Defenses to Defamation Claims
Opinion. If statement is an opinion as opposed to a fact, there is no defamation. This distinction often depends upon the context of the statement being made, who made it and whether the community would perceive that person to be in a position to know it as fact. For example, a statement by your spouse or family member that you engaged in an act is far less likely to be considered opinion than a person’s statement who just met you.
Fair Comment. Similar to opinion, if a fair comment on a matter of public interest is made, then the person making the statement is not likely to be liable for defamation. For example, citizens discussing the allegations surrounding a local political scandal are likely exercising a free comment on the public situation.
Consent. On a rare occasion, a person may argue as a defense that the defamed person actually consented, or agreed to, the dissemination of the allegedly defamatory statement.
“Public Figures” – Movie Stars, Pro Athletes, Politicians, Etc.
Under the First Amendment of the US Constitution, where a public figure brings an action for defamation, they must also prove the statement was made with “actual malice” in addition to the elements above. In other words, they must prove the person making the defamatory statement knew the statement to be false, or issue the statement with reckless disregard as to its truth. For example, a politician suing a newspaper over false allegations of corrupt conduct may prove the allegations were indeed false but receive no damages because the statements were not made with “actual malice”. In the defamation context, a public figure extends to a much broader range then celebrities and politicians. For example, a person may be “involuntarily” thrust into the public spotlight during a high-profile criminal case, or due to their relationship with a public figure, without ever intending to receive the publicity.
People targeted by lies and falsehoods often will be angry enough to sue. Gather the facts and evidence to be sure of your position. Then, make sure you understand the above issues before proceeding.
California Civil Code Section 43-53
California Civil Code Section 1786.50-1786.60
Irvine Trial Lawyer Gregory G. Brown
Orange County Trial Lawyers Brown & Charbonneau, LLP
Irvine Trial Lawyers Brown & Charbonneau, LLP